[Question] Inadvertent Omission of Disciplinary Charge by Employer and Confiscation of Property

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Inadvertent Omission of Disciplinary Charge by Employer and Confiscation of Property

Hi,

A disciplinary hearing was scheduled on 03 June 2010. There were numerous charges relating to "misrepresentation and dishonesty" taken from e-mails and SMS's obtained unlawfully by my employer.

Upon arriving at the disciplinary, I observed that a lawyer was leading evidence on behalf of the company. At that point, I requested that I have legal representation at the internal enquiry. The presiding officer granted this request, and the disciplinary was adjourned.

Earlier this week, I received an amended disciplinary notification indicating the date at which the disciplinary would continue and that a charge was "inadvertently" omitted in the first notification. The charge is "theft of company property/information/formulations".

I find this quite suspicious as had I not requested representation, the disciplinary would have continued without the added charge. Furthermore, how does one inadvertently omit such a charge (as it is a very serious allegation) when a lawyer would have been properly prepared by the Company?

Lastly, I am a whistleblower and the evidence that is being used by the Company was obtained unlawfully -- my personal laptop (yes, personal) and mobile phones (personal again) were confiscated under a non-existent company policy (despite me indicating this was an invasion of privacy) and print outs were then made and other staff were allowed to read these and look at information on my personal laptop. The company has held these items since 06 May 2010 and have not returned these to date as they claim they do not have clarity on "pending criminal charges" against me. The police indicates that it is a civil matter and that they cannot intervene.

all they want is to get rid of you,whatever their reason. question is what do you want? to fight this is not sometimes differentiation of what is right or wrong.you have to be mighty strong emotionally.these things are very draining.its obvious that whatever the outcome of the enquiry you're not wanted in that firm. i would rather get a labour expert,very good at negotiations,to get out at a price. my 2cents worth.best of luck

It sounds complicated and unlikely to end at the disciplinary, which makes focusing on individual issues and stages risky. I suggest you need a holistic perspective which only a fully briefed attorney is likely to be able to give you.

Nothing stops a company from adding charges - as long as the charges are clear and you are given enough time to prepare. The company still needs to prove the charges.
The company has no right to seize your personal property without the relevant warrants or subpoena. You can get a court order, alternatively charge them with theft.
I would suggest you get legal representation. Just the law of evidence has enough complications to warrant proffesional help. Your decision as to when to get a legal person involved obviously has financial implications. Representation at a hearing may not neccessarily prevent a dismissal and you will then have to repeat the process at CCMA, incurring more costs.
As we seem to be dealing with some serious charges, perhaps having the CCMA or alternative arbitration agent chair the hearing may be the answer. There are lot of issues here, civil charges(both sides) criminal charges(possibly both sides) is the evidence allowed, whistle blowing, misconduct etc - go see an attorney and look at options.

Anthony Sterne

www.acumenholdings.co.zaDISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.